FEDERAL COURT OF AUSTRALIA

Widjabul Wia-Bal v Attorney General of New South Wales [2020] FCAFC 34

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 25 May 2019 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

The dispute

1    By an amended interlocutory application filed on 25 May 2019 the applicant, a native title claimant, seeks that a separate question be stated and answered and/or that declarations be granted in respect of the conduct of the first respondent, the Attorney General of New South Wales (the Attorney General). The substance of the proposed separate question and declarations is the same. They embody the applicant’s contention that, on the facts as have been proven, the Attorney General cannot lawfully require that the applicant agree an indigenous land use agreement (ILUA) as a condition of the Attorney General being willing to agree to the making of a native title determination by consent. According to the applicant, the Attorney General’s conduct is in breach of an obligation of good faith he owes to the applicant in relation to the negotiation of an agreement for a native title determination by consent.

2    We have decided that the applicant’s case, whether framed as a proposed separate question or declarations, fails for lack of proof. In short, the applicant has not proved a sufficient factual foundation to enable the Court to find that the Attorney General has acted other than in good faith in respect of the negotiation of an agreement enabling the Court to make a native title determination by consent. To understand why this is so it is necessary to explain both the statutory scheme for the negotiation of an agreement for a native title determination and the limited evidence which is before the Court.

The statutory scheme

3    The Preamble to the Native Title Act 1993 (Cth) (the NT Act) provides that:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

(a)    claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

 (b)    proposals for the use of such land for economic purposes.

4    The Preamble thus establishes the intention of the Commonwealth Parliament that the ascertainment of native title rights and interests is to be achieved through a conciliatory process of negotiation, facilitated by governments, rather than by the conventional method of resolving disputes about rights through adversarial litigation.

5    Section 4 provides an overview of the NT Act including s 4(7) which, in part, says that:

This Act also:

(a)    provides for the Federal Court to make determinations of native title and compensation; and

(aa)    provides for the Federal Court to refer native title and compensation applications for mediation; and

(ab)    provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and

…

6    Section 10 provides that native title is recognised and protected in accordance with the NT Act.

7    By s 13 an application may be made to the Court for a determination of native title. A determination of native title is an approved determination of native title: s 13(3). Applications for an approved determination of native title are made in accordance with s 61 including, relevantly, an application by a native title claim group for a determination of native title.

8    By s 94A an order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in s 225 (which defines determination of native title).

9    Section 225 provides that:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

(Original emphasis.)

10    ILUAs are provided for in Div 3 Subdivs B, C and D of Pt 2 of the NT Act. Subdiv B concerns body corporate ILUAs. Subdiv C concerns area ILUAs. Subdiv D concerns alternative procedure ILUAs.

11    In Subdiv B, s 24BA provides that an agreement meeting the requirements of ss 24BB to 24BE is an ILUA. Section 24BB provides that the agreement must be about one or more of the following matters in relation to an area:

(a)    the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;

(aa)    particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;

(ab)    changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes;

(b)    withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;

(c)    the relationship between native title rights and interests and other rights and interests in relation to the area;

(d)    the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

(e)    extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;

(eaa)    providing a framework for the making of other agreements about matters relating to native title rights and interests;

 (ea)    compensation for any past act, intermediate period act or future act;

(f)    any other matter concerning native title rights and interests in relation to the area.

12    In Subdiv C, s 24CA provides that an agreement meeting the requirements of ss 24CB to 24CE is an ILUA. Section 24CB provides that the agreement must be about one or more of the following matters in relation to an area:

(a)    the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;

(aa)    particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;

(ab)    changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes;

(b)    withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;

(c)    the relationship between native title rights and interests and other rights and interests in relation to the area;

(d)    the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

(e)    extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;

(eaa)    providing a framework for the making of other agreements about matters relating to native title rights and interests;

 (ea)    compensation for any past act, intermediate period act or future act;

(f)    any other matter concerning native title rights and interests in relation to the area;

(g)    any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non-exclusive agricultural and pastoral leases).

13    Section 24DB, for Subdiv D, is in similar terms relating to alternative procedure ILUAs.

14    It will be apparent from the matters specified in ss 24BB (for body corporate ILUAs), s 24CB (for area ILUAs) and s 24DB (for alternative procedure ILUAs) that ILUAs do not concern the determination of native title rights. The provisions for ILUAs assume the existence of native title rights.

15    Section 94A, referred to above, is part of a suite of provisions in Pt 4 of the NT Act concerning determinations of the Court. Section 79A provides that Pt 4 has:

… the rules for processing Federal Court applications, and making determinations, relating to native title. Division 1A has the general rules, and the other Divisions of the Part deal with the following topics:

(a)    referring applications for mediation (see Division 1B);

(b)    agreements and unopposed applications (see Division 1C);

(c)    conferences (see Division 2);

(d)    orders (see Division 3);

(e)    mediation (see Division 4).

16    Section 84 provides for the parties to proceedings in relation to native title determination applications. By s 84(4) the State Minister is a party to proceedings if any area covered by the application is within the jurisdictional limits of the State. Other parties include persons covered by s 66(3)(a)(i) to (vi), persons claiming to hold native title in the relation to the area covered by the application or a person whose interest in relation to land or waters may be affected by a determination and who gives a required notice: s 84(3). Section 66(3)(a)(i) to (vi) refer to:

(i)    any registered native title claimant in relation to any of the area covered by the application; and

(ii)    any registered native title body corporate in relation to any of the area covered by the application; and

(iii)    any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and

(iv)    subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and

(v)    the Commonwealth Minister; and

(vi)    any local government body for any of the area covered by the application; and

…

17    The Court has a power to both join persons as parties (s 84(5)) and to order that a person other than the applicant cease to be a party to the proceedings (s 84(8)). The power in s 84(8) extends to a State party.

18    By s 85A each party must bear his or her own costs of proceedings unless the Court otherwise orders.

19    Division 1B of Pt 4 concerns the reference of proceedings to mediation. Section 86A(1) provides that the purpose of mediation in a proceeding that does not involve a compensation application is to assist the parties to reach agreement on some or all of the following matters:

(a)    whether native title exists or existed in relation to the area of land or waters covered by the application;

(b)    if native title exists or existed in relation to the area of land or waters covered by the application:

  (i)    who holds or held the native title;

(ii)    the nature, extent and manner of exercise of the native title rights and interests in relation to the area;

  (iii)    the nature and extent of any other interests in relation to the area;

(iv)    the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act);

(v)    to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease--whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others.

20    It will be apparent, and the note to s 86A(1) confirms, that these matters are the same as those required to be the subject of a native title determination as set out in s 225.

21    Section 86B(1) provides that unless the Court otherwise orders that there be no mediation an application for a determination of native title must be referred for mediation as soon as practicable after the end of the notice period under s 66. The Court may also order a mediation to cease: s 86C.

22    By s 86E the Court may request a mediator to provide reports on the progress of any mediation.

23    By s 86F some or all of the parties to a proceeding may negotiate with a view to agreeing to action that will result in, amongst other things, “any other thing being done in relation to the application”. Such an agreement “may involve matters other than native title”.

24    Section 87 applies if agreement is reached between the parties on terms of an order of the Court in relation to the proceedings and the terms of the agreement in writing signed by or on behalf of the parties are filed with the Court and the Court is satisfied that an order in or consistent with those terms would be within the power of the Court: s 87(1). The Court may make an order in or consistent with the terms of the agreement without holding or completing a hearing: s 87(2). The agreement may or may not include a determination of native title but either way the order may give effect to the terms of the agreement that involve matters other than native title: s 87(4) and (5). Section 87A contains equivalent provisions for agreements relating to part only of the area the subject of the application including s 87A(5) which enables an order to give effect to an agreement that involves matters other than native title.

25    Division 4 of Pt 4 concerns mediation.

26    By s 94D the mediator may hold such conferences of the parties or their representatives as the mediator considers will help in resolving the matter.

27    Section 94D(4) provides that:

In a proceeding before the Court, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any word spoken or act done at a conference.

28    By s 94E(5) each party, and each person representing a party, must act in good faith in relation to the conduct of the mediation.

29    Section 94P is in these terms:

(1)    If the person conducting the mediation considers that a party mentioned in column 1 of the following table in relation to an item, or a person representing such a party, did not act or is not acting in good faith in relation to the conduct of the mediation, the person may report that failure to the person mentioned in column 2 of the table in relation to the item:

(2)    If the person conducting the mediation considers that a legal practitioner did not act or is not acting in good faith in relation to the conduct of the mediation, the person may report that failure to the relevant State or Territory legal professional body that issued the legal practitioner with a practising certificate.

(3)    For the purposes of a report made under subsection (2), subsection 94D(4) does not apply to the extent that words spoken or acts done at a conference under section 94D relate to the failure mentioned under subsection (2) of this section.

(4)    If the person conducting the mediation considers that a party, or the party’s representative, did not act or is not acting in good faith in relation to the conduct of the mediation, the person may, despite subsection 94D(4), report that failure to the Federal Court (whether or not a report is also provided as mentioned in subsection (1) or (2) of this section).

(5)    A report must include:

(a)    the details of the failure to act in good faith; and

(b)    the context in which the conduct took place.

(6)    At the time that a report is provided as mentioned in subsection (1), (2) or (4), a copy of the report must also be provided to the person to whom it relates.

30    Section 94Q is as follows:

(1)    This section applies if the person conducting a mediation is a member of the NNTT.

(2)    If the person considers that a Government party, or that party’s representative, did not act or is not acting in good faith in relation to the conduct of the mediation, the report prepared under section 133 may include particulars of that failure and the reasons why the person considers that the conduct was not in good faith.

(3)    If it is proposed to make an inclusion in the report, the person must inform the Government party, or that party’s representative, before doing so.

31    The report under s 133 is the annual report of the National Native Title Tribunal (the NNTT).

32    It should be recorded that Div 4 of Pt 4 of the NT Act was inserted by the Native Title Amendment Act 2009 (Cth) (the 2009 Amendments). This Act centralised the control of native title claimant applications in the Court. The Explanatory Memorandum to the 2009 Amendments explained that:

Schedule 1 of the Bill would make a number of amendments to the native title mediation provisions in the Native Title Act. The amendments would give the Court the role of managing all native title claims, including whether claims will be mediated by the Court or referred to the NNTT or another Court-appointed individual or body for mediation. The Schedule contains a number of separate measures that primarily set out the powers and functions of mediators. A number of the amendments would expand the existing NNTT mediation powers to apply to all mediators.

The aim of the amendments is to emphasise the importance of mediation and draw on the Court’s significant alternative dispute resolution experience to achieve more negotiated outcomes. The importance of resolving native title matters through negotiated outcomes has been a central object of the Native Title Act since it was introduced in 1994.

The preamble to the Act states:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Having one body actively control the direction of each case with the assistance of case management powers means opportunities for resolution can be more easily identified. Parties that are behaving with less than good faith can also be more forcefully pulled into line. Where parties are deadlocked or unwilling to see common ground, the Court can bring a discipline and focus on issues through the use of its case management powers to ensure that matters do not languish.

33    In the version of the NT Act as it existed before the 2009 Amendments, similar provisions, including the requirement that each party and each person representing a party must act in good faith in relation to the conduct of the mediation, appeared in Div 4A of Pt 6 albeit applying to the mediation function which was then vested in the NNTT.

The duty of good faith

34    The applicant identified several sources of what it said was an obligation on the part of parties, including the Attorney General as the representative of the State, to negotiate in good faith in the conduct of the mediation of the applicant’s native title determination application. The sources were:

a.    the significance of the role of consent in processes established by and under the NT Act;

b.    the procedures mandated by ss 87 and 87A of the NT Act, as conditions on agreements for the making of consent determinations;

c.    the fact that the NT Act is beneficial legislation that privileges negotiated outcomes, with a view to facilitating the process of reconciliation;

d.    the requirements of sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth);

e.    the State’s role in negotiating consent determinations as parens patriae, which requires it to look after the interests of the whole community, including the native title claim group;

f.    the requirements of the State’s model litigant policy, including that it “act with complete propriety, fairly and in accordance with the highest professional standards”;

g.    requirements based on the ordinary law of contract, including that parties negotiating a contract must do so in good faith;

h.    obligations arising from an extension of the statutory requirement under the NT Act in relation to the right to negotiate process, that negotiation parties negotiate in good faith with a view to obtaining the agreement of the native title parties;

i.    the concept that the free, prior and informed consent of Indigenous peoples should be obtained in respect of decisions that affect their lands and resources; and

j.    principles based on the existence of a fiduciary obligation between the State and Indigenous peoples, which imposes a duty to negotiate with them in good faith in relation to matters affecting their interests and lands.

35    The Attorney General’s ultimate position was to the extent that there was any duty on his part to act in good faith in relation to the conduct of the mediation in this matter, the only potential consequence of breach of such a duty was the making of the reports contemplated by ss 94P and 94Q of the NT Act.

36    Given the terms of s 94E(5) of the NT Act, the existence of a duty on the part of each party and its representatives to act in good faith in relation to the conduct of a mediation should be beyond argument. Mansfield J had no hesitation in inferring such a duty from the provisions of the NT Act without apparent regard to the express terms of s 94E(5): Brown v South Australia [2010] FCA 875; (2010) 189 FCR 540 at [38] (Brown). His Honour also identified one circumstance in which there would be a breach of the duty to act in good faith in the conduct of a mediation (or, as Mansfield J framed it without regard to the terms of s 94E(5), to negotiate in good faith). At [38] he said:

If there is no bona fide dispute about issues concerning a proposed consent determination, it would be a breach of any obligation to negotiate in good faith to use the carrot of consent to the determination as leverage to secure agreement on other matters such as a sustainable benefits term.

37    We agree with this observation. In Charles v Sheffield Resources Limited [2017] FCAFC 218; (2017) 257 FCR 29 at [94], in the context of the right to negotiate procedures in Pt 2 of the NT Act, White J said:

[94]    Negotiating in good faith has been said to involve acting honestly, without ulterior motive or purpose, with an open mind, willingness to listen, willingness to compromise, an active and open participation of the other parties, and the making of every reasonable effort to reach an agreement: Brownley v Western Australia [1999] FCA 1139, (1999) 95 FCR 152 at [20], [23]-[24]; Walley v Western Australia [1999] FCA 3, (1999) 87 FCR 565 at [7]. Delay, obfuscation, intransigence and pettifoggery have been said to be indicia of a want of good faith: Brownley at [25]. Negotiation in good faith is not confined to the making of a reasonable offer: Walley at [15].

[95]    The conduct of the negotiating parties is to be assessed objectively.

38    It would be a breach of the duty imposed by s 94E(5) of the NT Act for a party to a mediation who does not have any bona fide dispute as to the existence of the native title rights which are sought to be the subject of a determination of native title by consent to withhold consent in an attempt to secure agreement on matters outside of the scope of the determination. To the extent the Attorney General denied the existence of the duty on all parties to conduct the mediation in good faith we see no reason to suppose that s 94E(5) does not mean what it says. It imposes a duty of good faith in the conduct of a mediation on all parties to the mediation in clear and unambiguous terms.

39    To the extent the Attorney General also denied the existence of any remedy against a party for breach of the duty to act in good faith in the conduct of a mediation, we also disagree. It is a fundamental principle that a court has control of its own processes. The doctrine of abuse of process is founded on the same fundamental principle. That doctrine, and the remedies available to a court to prevent the abuse of process, provide a useful analogue for the considerations that might inform an evaluation of whether a party to a mediation is not conducting itself in good faith and the remedies that might be available to redress the breach of the duty imposed by s 94E(5).

40    The touchstones of an abuse of process are use of the court’s procedures in a way which would be unjustifiably oppressive or bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [25]. As the High Court explained in UBS AG v Tyne [2018] HCA 45; (2018) 360 ALR 184 at [1]:

The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.

41    As with the doctrine of abuse of process, it is not possible to attempt to identify the circumstances which might give rise to a breach of the duty to act in good faith in the conduct of a mediation of a native title determination application. Nor is it possible to identify the orders which a court may make to remedy the breach. The appropriate remedy will be dictated by the particular circumstances constituting the breach of the duty. What is apparent, in our view, is that nothing in the NT Act suggests that because the mediator may make a report that a party is not acting in good faith in the conduct of a mediation, the power of the Court to control its own processes by whichever remedy is best tailored to suit the circumstances is excluded or in any way curtailed.

42    Accordingly, we reject the Attorney General’s submissions to the extent they suggested that there is no duty on the part of a party (and its legal representatives) to act in good faith in the conduct of a mediation. We also reject the Attorney General’s submissions to the extent they suggested that there was no duty, breach of which could give rise to any consequence other than the making of a report under ss 94P or 94Q. A party in breach of the duty to act in good faith in the conduct of a mediation is exposed to any order that has the effect of redressing or ameliorating the effect of the breach. Powers available to the Court include:

(1)    an order that a person cease to be a party: s 84(8) of the NT Act;

(2)    an order for costs tailored to the circumstances of the case, including an order for security for costs: s 85A(1) of the NT Act;

(3)    an order requiring oppressive material to be removed from the Court’s file or struck out of a document: r 6.01 of the Federal Court Rules 2011 (Cth) (the FCR);

(4)    an order striking out a pleading: r 16.21 of the FCR;

(5)    an order for summary judgment: r 26.01 of the FCR; and

(6)    in an appropriate case an order for an injunction, be it mandatory or prohibitory: s 23 of the Federal Court of Australia Act 1976 (Cth) (the Court Act).

43    It is appropriate to record another submission of the Attorney General for the purpose of expressly rejecting it. The Attorney General submitted that the existence of settlement privilege which prevents evidence from being adduced of communications in connection with an attempt to negotiate a settlement is:

… an aspect of a broader principle that the court which is hearing a dispute does not concern itself with how the parties go about trying to settle that dispute. Each party forms a view about the strength of its position and approaches a negotiation accordingly. If one party thinks that the other is not negotiating seriously, the solution is to test its position in the courtroom. Refusal to settle (or to settle on terms that the opponent is prepared to countenance) is not itself actionable.

44    The existence and effect of settlement privilege may be accepted. But in the context of the provisions of the NT Act if one party considers that the other is not acting in good faith in the conduct of the mediation that party may seek the intervention of the Court for such remedy as may be appropriate in the particular circumstances of the case. To accept, as the Attorney General would have it, that the ultimate remedy is simply a hearing on the merits of the claim would be to undermine the statutory scheme of the NT Act and, in particular, its insistence that disputes about native title be resolved through conciliation if at all possible. It may be accepted that refusal to settle is not actionable. But there is no reason to suppose that a party’s refusal to comply with an obligation imposed by the NT Act, to conduct a mediation in good faith, is not actionable.

45    Given the terms of s 94E(5) of the NT Act it is not necessary to consider the various sources of power on which the applicant relied as founding the existence of a duty of parties to act in good faith in the conduct of a mediation. However, we should say something about ss 37M and 37N of the Court Act. Section 37M expresses the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Section 37N imposes a duty on parties and their legal representatives to conduct proceedings in a way that is consistent with the overarching purpose. Contrary to the submissions for the Attorney General:

(1)    the fact that s 37M(3) provides that the civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose does not mean that the Court is confined to making an order based on the civil practice and procedure provisions for breach of the duty; and

(2)    the fact that s 37N(4) provides that in exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty in ss 37N(1) or (2) also does not mean that that the Court is confined to making a costs order for a breach of the duty.

46    Again, by analogy to the doctrine of abuse of process, the Court has the power to control its own processes, including by framing such a remedy as is appropriate in all of the circumstances of any contravention of the duties imposed by ss 37N(1) or (2).

47    And as Charlesworth J said in Irwin v Irwin [2016] FCA 1565 at [39]:

The overarching purpose of s 37M does not include the objective of punishing a litigant in respect of his or her conduct in a proceeding. Having said that, it must be recognised that many civil practice and procedure provisions empower the Court to make orders having the practical effect of imposing an adverse and serious consequence upon a party where the party has departed in some way from the requirements of some other civil practice and procedure provision or an order made pursuant to such a provision. The purpose for imposing the consequence is not, however, to punish the party concerned, but to promote the overarching purpose stated in s 37M of the Act.

48    Further, the Attorney General’s submission that “given the privileged status of settlement negotiations it cannot have been Parliament’s intention that negotiating tactics per se would become the subject of judicial scrutiny and sanction” avoids the essential issue. Negotiating tactics are one thing. Failing to act in good faith in the conduct of a mediation is another. The fact that the NT Act imposes a positive duty on parties to act in good faith in the conduct of a mediation necessarily means that at least this aspect of the mediation process is subject to judicial scrutiny and sanction. We note that s 131(2)(i) of the Evidence Act 1995 (Cth) excludes from the settlement privilege circumstances where the making of the communication or preparing the document affects a right of a person. Every party to a mediation under the NT Act has a right to require the other parties to act in good faith in the conduct of the mediation. If the making of the communication or the preparing of a document affects that right it will not be protected by the privilege.

49    Similarly, the Attorney General’s submission that “it is not inconsistent with s 37M’s ‘overarching purpose’ for a party to state the terms on which he or she is prepared to compromise and not to be persuaded to move further” masks the real issue. It may well be inconsistent with the duty of good faith imposed by s 94E(5) and with the duties imposed by ss 37N(1) or (2) for a party (or its legal representative) to state the terms on which he or she is prepared to compromise and not be persuaded to go further if, for example:

(1)    the terms involve insistence on a collateral benefit when there is no bona fide dispute about the existence of native title rights (as in Brown);

(2)    the terms involve insistence on a collateral benefit which is outside the scope, purpose and objects of the NT Act;

(3)    on the available material no reasonable person could assert that there was a bona fide dispute about the existence of native title rights; or

(4)    the insistence on the pre-condition to the entering into an agreement under ss 87 or 87A was irrational, unreasonable, unfair or involved oppression by reason of any other fact, matter or circumstance.

50    As we have said, it is not possible to identify all of the circumstances which may be characterised as a breach of the duty to act in good faith in the conduct of a mediation or a failure to conduct proceedings in a way that is consistent with the overarching purpose in s 37M. What we do not accept is the effect of the submissions for the Attorney General which would rob both s 94E(5) of the NT Act and ss 37M and 37N of the Court Act of any substance.

51    Before considering the facts of the present case it is necessary to say something about the Court’s power to make a determination of native title in accordance with an agreement. The Court must be satisfied that it is appropriate to make the orders specified in the agreement and that there is power to do so: ss 87(1)(c) and 87A(4) of the NT Act. It has been stated that it is sufficient for a party in the position of the State to satisfy itself that there is a credible basis for the application: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] (Lovett) citing Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109; see also Watson v Western Australia (No 6) [2014] FCA 545 at [29]. Further, in Lovett it was made clear that “[t]he Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court”. To fulfil its function under the NT Act, in the context of a mediation with a view to entering an agreement under ss 87 or 87A, the State is not required to obtain proof from an applicant which would demonstrate to the civil standard of proof, on the balance of probabilities, that the native title rights claimed by the applicant exist. Indeed, for the State to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights sought in the determination would be inconsistent with the obligation in s 94E(5) to act in good faith in the conduct of the mediation. It cannot be an act in good faith in the conduct of a mediation to require an applicant to provide the State with more than that which is legally necessary for the State to be in a position to inform the Court that, from the State’s perspective, it is appropriate for the Court to make the determination of native title in orders giving effect to the terms of an agreement as provided for in s 87 or 87A of the NT Act. To place such an unwarranted burden on an applicant would be fundamentally inconsistent with the scheme of the NT Act and in particular the provisions identified above which constitute the “special procedure”, which the Preamble to the statute recognises is required for the “just and proper ascertainment of native title rights and interests”. Such an act would readily be characterised as an act not in good faith in the conduct of a mediation.

52    Against this background the facts of the present case may be explained.

The facts

53    On 26 August 2015, an order was made that the “connection issues” identified in a particular letter be referred to mediation. On 21 March 2016, a more general order was made that the matter be referred to mediation before a Registrar, such mediation to be completed by 31 May 2016. On 20 June 2016, an order was made that the matter remain in mediation to be conducted by a Registrar of the Court. No order has been made under s 86C to the effect that the mediation cease.

54    Accordingly, the matter has been referred to mediation as contemplated by s 86B(1) of the NT Act. By s 94E(5) each party and each person representing a party must act in good faith in relation to the conduct of the mediation.

55    According to the statement of agreed facts tendered in the proceeding, the evidence on which the applicant would propose to rely to establish connection has been provided to the first respondent, on a confidential and without prejudice basis, between 14 April 2014 and 2 July 2018. None of that evidence, it is noted, has been filed.

56    Further, pursuant to orders of the Court, the Attorney General filed two notices which stated that the Attorney General accepted the applicant’s evidence on connection:

…for the purpose only of commencing negotiations in good faith and without prejudice with a view to agreeing a Consent Determination and an Indigenous Land Use Agreement, on the basis that the First Respondent preserves his ability to challenge the applicants’ [sic] connection to the land if the First Respondent at any time considers the negotiations to be unsuccessful.

57    Following further case management further orders were made on 9 August 2017 as follows:

1.    By September 2017, the first respondent is to provide the applicant with correspondence stating whether, having considered all connection material provided to it by the applicant, the first respondent is satisfied that there is a credible basis for the native title determination application, meaning the first respondent considers it fairly arguable that:

a.    one or more of the native title rights and interests asserted in the applicant’s Form 1 application filed 24 June 2013 are possessed under the traditional laws acknowledged and the traditional customs observed by the Widjabul People; and

b.    the Widjabul People, by those law and customs, have a connection with the lands and waters; and

c.    those rights and interest are recognised by the common law of Australia.

2.    For the avoidance of doubt, the correspondence to the application referred to in Order 1 needs to:

a.    identify first respondent’s position by reference to each of the three requirements;

b.    identify the native title rights or interests (if any) for which the first respondent considers there to be a credible basis; and

c.    where the first respondent’s position is that any of the requirements have not been established to a sufficient standard (including in respect of each claimed native title right or interest), provide details to the applicant about the alleged deficiencies (including in respect of each such claimed right or interest).

3.    By 29 September 2017 the first respondent is also to notify the Court whether the first respondent is satisfied that there is a credible basis for the native title determination application, and if not, briefly state the reasons by reference to the matters in Order 1 (a) – (c).

(Original emphasis.)

58    On 29 September 2017, the Attorney General filed a notice as required by order 3 of the orders made on 9 August 2017. That notice stated as follows:

Native title rights for which the First Respondent considers there to be a credible basis

2.    The First Respondent is satisfied that there is a credible basis for the native title determination recognising the following non-exclusive native title rights:

  (a)    the right to access, move about on and traverse the Application area;

(b)    the right to camp and erect temporary shelters and other structures on the Application area but not to permanently camp on, possess or occupy any part of the Application area;

  (c)    the right to live, being to enter and remain on the Application area;

(d)    the right to hunt for non-commercial personal, domestic, communal and cultural purposes on the Application area;

(e)    the right to fish for non-commercial personal, domestic, communal and cultural purposes on the Application area;

(f)    the right to have access to and use the natural water resources for non-commercial personal, domestic, communal and cultural purposes of the Application area;

(g)    the right to gather and use the natural resources of the Application area (including food, medicinal plants timber, tubers, charcoal, wax, stone, ochre and resin as well as materials for fabricating tools, hunting implements, making artwork and musical instruments) for non-commercial personal, domestic, communal and cultural purposes;

(h)    the right to share and exchange the natural resources within the Application area for non-commercial personal, domestic, communal and cultural purposes;

(i)    the right to conduct and participate in ceremonial, ritual and spiritual activities on the Application area;

(j)    the right to maintain and protect places of importance under traditional law and customs in the Application area;

(k)    the right to transmit traditional knowledge to members of the native title claim group including knowledge of particular sites on the Application area;

  (l)    the right to hold meetings on the Application area.

3.    The native title right and interests described in paragraph 2 wold not confer:

(a)    possession, occupation, use and enjoyment of the land or waters in the Application area to the exclusion of all others; and

(b)    any right to control public access to or use of the land or waters in the Application area.

4.    For the avoidance of doubt, the First Respondent confirms that, with respect to those rights set out in paragraph 2(a) – (l), the First Respondent accepts that there is a credible basis for the claim that the native title claimants possess those non-exclusive and non-commercial rights under the traditional laws acknowledged and customs observed by the Widjabul Wia-bul [sic] People, that the Widjabul Wia-bul [sic] People have a connection with the Application area by those law and customs, and that such rights are capable of being recognised by the common law.

(Original emphasis.)

59    The notice also identified a series of native title rights claimed in the native title determination application for which the Attorney General said he did not consider there to be a credible basis for the existence of those rights. These included:

1.    the right to possession, occupation, use and enjoyment of the lands and waters of the Application area (in areas where exclusive native title can be recognised);

2.    the right to use and enjoy the Application area;

3.    the right to exercise any of the native title rights for commercial purposes;

4.    the right to manage natural resources of the Application area;

5.    the right to control access to or use of the lands and waters within the Application area by other Aboriginal People in accordance with traditional laws and customs;

6.    the rights to speak for and make non-exclusive decisions about the Application area in accordance with traditional laws and customs; and

7.    the right to speak authoritatively about the Application area among other Aboriginal People in accordance with traditional laws and customs.

60    On 15 October 2018, the Attorney General provided the applicant with a draft ILUA. The draft ILUA has not been filed in the proceeding and, it may be inferred, was provided on a without prejudice basis as part of the conduct of the mediation.

61    On 7 December 2018, the applicant informed the Attorney General that the applicant was unwilling to negotiate an ILUA before a consent determination had been made and rejected the terms of the draft ILUA.

62    On 15 February 2019, the Court made orders including the following:

1.    The applicant is to notify the Court and the first respondent whether it is willing to negotiate an ILUA to accompany a consent determination by 15 March 2019.

2.    The first respondent is to notify the Court and the active parties whether it is willing to enter into a consent determination without an ILUA by 15 March 2019.

3.    The applicant is to file and serve any Interlocutory Application raising the issue it wishes to raise as to whether the first respondent may make an agreement or propose to enter into a consent determination conditional upon an ILUA, accompanying affidavits in support, and a draft statement of agreed facts by 12 April 2019.

63    On 15 March 2019, the applicant notified the Court and the Attorney General that the applicant was unwilling to enter into negotiations with the Attorney General in relation to an ILUA prior to a consent determination.

64    Also on 15 March 2019, the Attorney General notified the Court and the applicant by letter in these terms:

The First Respondent is not prepared to enter into an agreement under s. 87 or s. 87A of the Native Title Act 1993 (Cth) (the NT Act) unless an indigenous land use agreement (ILUA) between the Applicant and the State has been registered under s. 199B of the NT Act.

Has the Attorney General acted in good faith?

65    The essence of the Attorney General’s submission was that there was nothing improper about a State party, having considered the material presented to it, deciding that it will accede to the recognition of some native title rights only as part of an overall outcome acceptable to the State. In the present case it was submitted that the Attorney General has assessed the strength of the applicant’s material supporting the claimed native title rights and has decided that he was prepared to enter into an agreement under ss 87 or 87A only if an ILUA had been registered. It was apparent from the submissions for the Attorney General that this position applied to both the native title rights for which the Attorney General accepted, that the applicant had provided material establishing a credible basis for the existence of such rights, and the native title rights which the Attorney General did not accept, that the applicant had provided material establishing a credible basis for the existence of such rights.

66    The essence of the applicant’s submission was that the proper scope of any negotiation as part of a mediation under the NT Act was confined by s 86A to the matters specified in that section which reflect the necessary terms of a determination under s 225. These matters do not extend to the negotiation of an ILUA which, as ss 24BB and 24CA disclose, involve matters extraneous to the making of a determination under s 225 and thus to the conduct of a mediation in accordance with s 86A. As the applicant would have it, the Attorney General could not require the applicant to agree to an ILUA as a pre-condition to the preparedness of the Attorney General to negotiate an agreement under ss 87 or 87A as an ILUA is a matter extraneous to the permissible scope of a mediation under the NT Act as prescribed by s 86A.

67    The problem with the applicant’s submission is that s 86A must be read with ss 87 and 87A and, in particular, ss 87(4) and (5) and 87A(5). Those subsections expressly permit an agreement to involve matters other than native title. Even if an ILUA is characterised as a matter other than native title (a characterisation which is not immediately apparent given the terms of ss 24BB and 24CA) it must be permissible for the parties to negotiate about an ILUA as part of a mediation under Pt 4 of the NT Act given the terms of ss 87(4) and (5) and 87A(5). Accordingly, it cannot be said that it is inherently impermissible, and thus not an act in good faith, for a State party to adopt a position in a mediation under Pt 4 of the NT Act that its entry into an agreement under ss 87 and 87A is conditional upon the registration of an ILUA. Something more would need to be proved to support a contention of a lack of good faith on the part of a State party.

68    In the present case, however, the material presented to the Attorney General to support the claimed native title rights is unknown. The terms of the draft ILUA are unknown. As a result, there is no prospect of the applicant proving, for example, that no reasonable person in the position of the Attorney General could assert a bona fide dispute about the existence of the native title rights the applicant has claimed. Further, in the present case, while the Attorney General has accepted a credible basis for the existence of some of the claimed native title rights, the Attorney General has also denied the existence of a credible basis for other claimed native title rights. On the evidence, accordingly, there is a bona fide dispute about the existence of at least some of the claimed native title rights. And as to the other rights, as the Attorney General submitted, while he has accepted the existence of a credible basis for those rights, the strength of the case the applicant has made in support of those rights is unknown.

69    It follows that in the present case the lack of evidence before the Court about the content of the material the applicant has provided to the Attorney General and the terms of the draft ILUA effectively preclude any evaluation by the Court about the Attorney General’s position and, in particular, whether it may be irrational, unreasonable, unfair or oppressive in the circumstances or involve any other conduct which may fall below the standard of good faith which the NT Act requires. In these circumstances it cannot be said, on the facts of this case, that the Attorney General’s position involves an act not in good faith in the conduct of the mediation.

70    Is there any significance, however, in the fact that the letter dated 15 March 2019 involves a blanket refusal to negotiate any form of agreement under ss 87 or 87A unless an ILUA between the applicant and the State has been registered, despite the Attorney General’s acceptance of a credible basis for the existence of at least some of the claimed native title rights?

71    There is the risk of a vice in the Attorney General’s position, although it cannot be said on the evidence in the present case that the vice has manifested itself. The risk is of inappropriate conflation of different aspects of the scheme established by the NT Act – on the one hand, the mediation scheme directed towards the making of agreements under ss 87 and 87A and, on the other hand, the contested litigation which the scheme of the NT Act implicitly contemplates will be a last resort if the process of mediation mandated by the NT Act is unsuccessful. For example, given that the Attorney General accepted a credible basis for the existence of some native title rights what can be said at the least in the present case is that there is no bona fide dispute about those rights for the purpose of the making of an agreement under ss 87 or 87A. Consistent with his obligations under s94E(5) of the NT Act, his duties under ss 37M and 37N of the Court Act and as a model litigant, in the ordinary course it would be expected that a person in the position of the Attorney General would be willing to negotiate an agreement recognising at least those native title rights and interests irrespective of the existence of an ILUA. To insist on an ILUA as a pre-condition to an agreement confined to those rights for which the Attorney General has accepted there is a credible basis would run the risk of the Attorney General acting in other than good faith in the conduct of the mediation. For example, it may be that the material the applicant has presented means that it would be irrational or unreasonable to assert a bona fide dispute about the existence of those confined native title rights. It may be that the terms of the proposed ILUA are not such as might be reasonably proposed in the circumstances. In either case there may be a sufficient evidentiary foundation to conclude that there has been an act not in good faith in the conduct of a mediation. But that is not the present case where we have evidence neither of the material on which the applicant relied to found the asserted native title rights nor the terms of the draft ILUA as proposed by the Attorney General.

72    Further, as we understood it, the Attorney General’s position was that having accepted that a credible basis exists for the existence of certain native title rights, the State party would nevertheless always be able to insist on the applicant agreeing to a matter unrelated to the existence of native title (such as negotiation and registration of an ILUA) because there may still be a bona fide dispute about the existence of those same native title rights if required to be established in contested litigation to the civil standard of on the balance of probabilities. This position (if it be the Attorney General’s position) fails to recognise and give due weight to the obligation to mediate according to the standard of proof (a credible basis) which applies to the making of an agreement under ss 87 and 87A. It also does not confine the scope of action of the State party by reference to the essential constraints of rationality, reasonableness and fairness. Conduct which is able to be characterised as irrational, unreasonable, unfair or oppressive in all the circumstances may well be conduct in other than good faith for the purpose of s 94E(5) of the NT Act. In particular, a State party, whose conduct in the mediation of requiring an ILUA as a pre-condition to entry into an agreement under ss 87 or 87A may be characterised as irrational, unreasonable, unfair or oppressive in all the circumstances, would not be permitted to hold an applicant to ransom; the Court could and would craft an appropriate remedy for the breach of the duty to act in good faith.

73    The present case, however, is complicated by the fact that there are a suite of native title rights which the applicant claims and in relation to which the Attorney General does not accept the existence of a credible basis for those rights. It is in the context of those rights, about which there is a manifest bona fide dispute for the purpose of entry into an agreement under ss 87 or 87A, that there is significant scope for what the Attorney General framed as “horse trading”. We think this is what Mansfield J must have had in mind when he said this at [39] and [40] of Brown:

Of course, that is not to say that matters consequential upon or related to the recognition of native title rights and interests may not be the subject of negotiation. It is generally in the interests of all concerned if such matters can be addressed and agreed at the same time. If, as here, agreement on a sustained benefits term could not be reached after negotiation, it is appropriate that the consent determination be made (together with any other agreements to be reflected in the orders).

There may also be circumstances in which, after appropriate inquiry, the State (and presumably other respondents) are not satisfied that the claimed native title rights and interests are established in the claim group, or in which there is an issue as to whether such native title rights and interests as existed at settlement had persisted so that they may (subject to extinguishment) be enjoyed by the present claim group. In such circumstances, the parties may entirely appropriate negotiate for a mix of accepted native title rights and interests and other orders, or indeed for other non-native title outcomes. They will be doing so in good faith, having regard to their respective and real perceptions and undertakings about their strengths and weaknesses on the various matters under consideration. If that negotiation leads to proposed orders to be made by the Court under s 87, if satisfied it is appropriate to make them, that is an outcome which the NT Act contemplates and provides for. As is implicit in the submissions, this is clearly not such a case.

74    If it were otherwise, and no distinction were drawn between the standard of proof necessary for a State party to enter into an agreement under ss 87 or 87A (the existence of a credible basis for the claimed native title rights) and the standard of proof necessary for an applicant to establish native title rights in contested litigation (proof on the balance of probabilities that the claimed native title rights exist), the scheme of the NT Act, to encourage and facilitate the just and proper ascertainment of native title, if possible, by conciliation will be undermined.

75    We return now to the potential vice in the letter from the Attorney General of 15 March 2019. The potential vice is that the Attorney General’s willingness to enter into any form of agreement under ss 87 or 87A, even one confined to the native title rights for which the Attorney General has accepted there is a credible basis, is predicated on the applicant being willing to enter into an ILUA. If, by reference to the content of the material the applicant has provided to the Attorney General or to the terms of the proposed ILUA, it could be established that the Attorney General’s conduct is irrational, unreasonable, unfair or oppressive in all the circumstances, it may have been that the applicant could have established that the Attorney General has not acted in good faith in the conduct of the mediation. If that were so, the applicant would be being held to ransom in a manner inconsistent with the statutory scheme of the NT Act. This, the Court would not permit. The applicant, however, has not adduced sufficient evidence to enable an argument to this effect to be considered, let alone upheld.

76    The interlocutory application, as noted, involved both a proposed separate question and declarations. It is unnecessary to consider the separate question as, consistent with the Attorney General’s submissions, the matter is best addressed through the application for the making of declarations. For the reasons given, however, it is not possible to make any declaration in the form sought by the applicant. The applicant has not proved circumstances from which it could be found that it was not lawful for the Attorney General to require or insist upon the making of an ILUA as a pre-condition of entering into an agreement under ss 87 or 87A of the NT Act.

77    It follows that the interlocutory application must be dismissed.

Associate:

Dated:    10 March 2020

SCHEDULE OF PARTIES